Rihanna and the (Un?)Constitutionality of the Mutual Stay Away Order

Can anyone out there explain the constitutionality of the Chris Brown plea deal? Brown pleaded guilty to one count of felony assault based upon his attack of Rihanna, and he got five years of probation and community labor. The judge also entered a no-contact/stay away order against Brown under which he is to stay at least 50 yards away from Rihanna and not have contact with her for five years (unless the two are at the same industry function, in which case he is to stay at least 10 yards away). But here’s the weird part: The judge also “told Rihanna that the order is ‘really two-ways,’ meaning that Rihanna must stay away from Brown just as he must stay away from her.”

The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine.See, e.g., People v. Gaytan, 2009 WL 1349196 (Cal.App. 3 Dist. 2009).

Under this Section, we can clearly see how the judge could impose a stay away order against Brown. But, how could she impose it against Rihanna, who was neither a party in the criminal action against Brown, nor, obviously, someone whom the judge was giving probation?

After doing research, I found some family law cases where there have been mutual stay away orders, but in those cases, both of the individuals involved were parties subject to the court’s orders, which were governed by California’s Family Code, not its Penal Code. See, e.g., People v. Gaytan, 2009 WL 1349196 (Cal.App. 3 Dist. 2009).

But does anyone know the authority for imposing the stay away order against Rihanna? And while I see how it makes some sense on a practical level, does anyone else find it disturbing that Rihanna is being punished (at least on some level) for being attacked, with (I’m guessing) the prospect of criminal penalties being imposed against her if she comes close to Brown?

UPDATE (6/26/09; 8:13 P.M. CDT): I just spoke with Rihanna’s attorney, Donald Etra, and it seems as if, as some of you speculated in the comments, this is another case of the media being way off on the reporting of a legal story. Etra told me that the court had no jurisdiction over Rihanna, so it was simply the judge deciding to admonish her to honor the stay away order, even though it does not legally bind her

I suppose that could be the case, but many of the articles I have seen written about the case contain this or similar language “After Brown entered his plea and left the courtroom, Rihanna entered and Schnegg explained to the Barbados-born singer that the stay-away order was not a one-way order – she will be in violation if she gets closer to Brown than the order allows.”

Unless the reporting on this is way off, it seems that Rihanna would be subject to criminal penalties if she violates the stay away order.

The judge said the order “is really two ways” not because there is an actual order against Rihanna that can be criminally enforced (such as with a criminal charge of violating a protective order) but because it’s totally unfair for her to be able to go to his house, put him in violation of the order, and then call the cops and charge him with a crime.

I am not suggesting that she would do so. I am not suggesting that all, most, or any particular percentage of victims of domestic violence do so. But a protective order HAS to be “really two ways” – otherwise the person “protected” has complete control over whether the person prohibited from contact can be charged and convicted of a criminal offense. Because she can put him in violation and then enforce the order against him. If she walks up to him at an industry event and starts to talk to him, yes, he can immediately walk away, but he’d still technically be in violation of the court’s order.

Now, in this particular instance, since Rihanna was not aking for the stay away order and apparently spoke against it in court, I would kind of agree with you that she’s being punished as well, and that that could be a problem. But for those SEEKING such orders, the “really two ways” comment makes sense and is not punishment, it’s the logical implication of what they are asking the court to do.

Thanks, Samquilla. I’ve been in courtrooms for many domestic violence/ restraining order cases when I worked at legal aid. And, as you say, in some cases, the judge explains to the victim that she needs to honor the restraining order as well. Maybe that is all the judge was saying to Rihanna, and the reporting of the case is just a bit exaggerated. I certainly hope that’s the case.

But even in that case, I still find the judge’s actions a bit odd because, as you note, Rihanna didn’t ask for a stay away order. When a victim asks for a restraining order, I can see why the judge would instruct her to honor it as well. But I’ve never seen a case where a judge “punishes” the victim by “enforcing” an order against her that she didn’t ask for, even if such enforcement makes some sense practically and even if the enforcement is not criminal enforcement.

While many judges do admonish petitioners in civil protective order cases not to violate the terms of the order, those orders generally bind ONLY the respondent–and that’s part of why they’re said to be so effective (although I could argue about this as well)–because the order is not between the petitioner and the respondent, but because the order is a court order, between the respondent and the court. The respondent–in this case, Chris Brown–is responsible for ensuring that his conduct complies with the order. The example we always use is that if Rihanna walks into the grocery store, it’s incumbent upon Brown to walk out. If Rihanna calls, he doesn’t answer. While most would prefer that petitioners not have contact with respondents (another thing we could debate), the duty is not upon her, but upon him. The judge turns that duty on its head, in ways that are really problematic should Brown violate the order and then claim that it’s all Rihanna’s fault.

In my experience, journalists are really terrible at accurately describing what has happened in a courtroom. Unless they are also lawyers AND are being very careful. So my impression would be that it’s much more likely that the reporting is wrong than that the judge entered a legally enforceable stay away order against Rhianna.

Also, I apologize for the snarky comment – I come from YLS, land of professors who have never practiced law and say all kinds of completely impractical nutty things (that are often, granted, theoretically interesting).

I think the most problematic aspect is that Rhianna was not seeking the order. I think it is very problematic for judges to order that person A not have contact with person B if that is not what person B wants. Very few people will comply with a court’s order not to contact a family member or loved one if the family member or loved one WANTS contact with them. It reduces the autonomy of the “protected” person and it says that society is better at deciding people’s family relationships than they are themselves. And I just don’t think that’s right. It’s one thing to put the force of society/law behind a person’s declaration that they want nothing to do with another person. It’s totally different to tell them that they don’t know what’s good for them, so we’re going to decide for them that this person can’t have anything to do with them.

The courts many times order that parties not have contact with each other regardless of THEIR wishes. Maybe the courts/us is the objective observer of a situation (I’m not saying always, but they are not always wrong either) and as such must decide for all parties. Most things in life are not either or propositions. That is why we have juries and judges. Do I think the judge and jury system is infallible? Not on your life! (or mine!) But one must go far beyond a single view of something to even approach a balanced opinion. Any argument that does not examine things as an extremely faceted existence falls way short of balance and truth much of the time. If someone is OK WITH BEING BEAT UP AND AGREES NOT TO SEEK OUR HELP TO CONTROL IT AND AGREES TO PAY ANY COSTS THAT RESULT, then sure. Have at it without court intervention. As long as it does not infringe on me in any way, that is!

Thanks, Samquilla. I have been trying to get beyond the press accounts and find out what the judge actually ordered, but so far I have been unsuccessful.

Bob, the problem still seems to me to be that Rihanna was not a party. If this were a civil action, I could see how the judge could impose a mutual stay away order even if I did not (necessarily) agree with her decision. But in this case, Rihanna did not ask for a stay away order and was not a party. Maybe the press accounts are wrong, but if the judge ordered Rihanna to (not) do something, I see a serious problem.

I suppose we have a differing opinion of what a “party” is. Since I am not a lawyer my understanding of the word may not be the legal one. But I fail to see that it makes any difference whether this case is a civil one or a criminal one. I also may not agree with this, but I can’t see a breach of the constitution. I suppose this is why we have appeals courts and a supreme court.

Thanks, Bob. The difference is that if Rihanna decided to bring a civil suit against Chris Brown, she would have been the civil plaintiff, and he would have been the civil defendant. As a civil plaintiff, Rihanna would have been a party and thus subject to the court’s orders. But, here Rihanna did not bring a civil action against Chris Brown. Instead, the State brought a criminal action against Chris Brown. The parties were thus the State and Chris Brown, the criminal defendant. Rihanna, the victim, is not considered a party. This is why the judge could not bind Rihanna with an order, and, as I just noted in my update, it turns out that she didn’t, despite the news stories to the contrary.